iddi athumani ndaki vs ally salum said administrator of the estate of antar said kleb 2020 tzhclandd 2188 28 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 208 OF 2016 (Arising from the decision of the District Land and Housing Tribunal for Morogoro in Land Appeal No. 83 of 2011 (Hon. Kirumbi, Chairman) IDDI ATHUMANI NDAKI .......................... APPELLANT VERSUS ALLY SALUM SAID (the Administrator of The estate of ANTAR SAID KLEB................ RESPONDENT MAIGE, J JUDGMENT At the District Land and Housing Tribunal for Morogoro ("the trial tribunal"), the respondent herein won a suit against the appellant for recovery of a landed property described as Plot No. 44/N Mindu Street within the Municipality of Morogoro ("the suit property"). The suit was instituted by SALUM SAID as the administrator of the estate of the late ANTAR SAID KLEB. He is the one who instituted this appeal as well. Alas, while the appeal was still pending, the said SAID SALUM SAID who shall henceforward be referred to as "the predecessor administrator" passed away. By the order of this Court vide Misc. Land Application No. 97 of 2020 dated 28th May 2020, the appellant was allowed to proceed with the appeal against the SAID ALLY SALUM SAID ("the successor administrator") as a successor respondent. The successor administrator is in possession of letters of administration granted by the primary court of Kingozwira vide Mirathi No. 23 of 2019 which was granted on 14th February 2020. In the amended memorandum of appeal, the appellant has raised nine grounds to fault the decision of the trial tribunal. On assessment, the grounds raise two pertinent issues which deserve consideration in this 4* S appeal. First, whether the trial tribunal was clothed with jurisdiction to entertain the application? Two, whether in accordance with the evidence adduced at the trial tribunal it was correct for the trial tribunal to hold that, the suit property belonged to Respondent as the administrator of the deceased estate of the late ANTAR SAID KLEEP Though the appeal was instituted by the appellant in person, in the hearing of the appeal, both parties were duly represented. Mr. Mohamed Tibanyendera, learned advocate, represented the appellant while his learned friend advocate Lulu Mbinga represented the respondent. The debate for and against the appeal was argued by way of written submissions. I recommend the counsel for their very informative submissions which have been given due consideration in this judgment. 2 Two points of preliminary objections were raised in the submissions for the respondent. As a matter of procedure, I am bound to determine them first. The first point is on the admissibility of the written submissions for the appellant. The written submissions in support of the appeal were irrefutably filed on 12th June 2020. In the humble opinion of advocate Lulu, the same were filed out of the 14 days period allotted by the Court. Mr. Tibanyendera submits that, they were filed within the allotted time. He is correct according to the Court record. The proceedings of this Court dated 28th May 2020 speak for themselves. The appellant was directed to, as he did, file his written submissions in support of the appeal on 12th June 2020. The preliminary objection is henceforth overruled. In the second place, advocate Lulu has doubted if the instant appeal was filed well within time. In his understanding, while the appeal was to be filed on or before 11th December 2016, this appeal was filed on 13th December 2016. In his view therefore, it was time barred and it ought to be dismissed. Mr. Tibanyendera resists the claim. He submits that, the initial memorandum of appeal was filed within time. It was subsequently amended by the permission of the Court. He therefore urges the Court to overrule the objection. I have casted a glance over the judgment of the trial tribunal and the initial memorandum of appeal. The judgment of the trial tribunal was delivered on 28th October 2016. If every thing remained constant, it was to be filed on or before 12th December 2016. The respondent claims that the same was filed on 13th December 2016. Though he is the one who is claiming that it was filed on the said date, he has not adduced any evidence to support the proposition. The receipt for filing fees would have been the evidence to establish the timing of the filing of the memorandum of appeal. I have tried to trace it on the record but in vain. The initial memorandum of appeal appears to have been received on 7th December 2016 according to the Court seal affixed thereon. The admission form forwarded to the Judge in Charge for admission appears to have been endorsed and signed, by the Deputy Registrar, on the same date. It equally appears to have been endorsed, on the same date, by the Judge in Charge, directing the Deputy Registrar to admit it. In my opinion and in the circumstance of this case, it can be said without any hesitation that the instant appeal was filed on 7th December 2016. It was therefore within the 45 days appeal period. The preliminary objection is therefore overruled. This now takes me to the substance of the appeal. As a matter of practice, I will start with the legal issue as to jurisdiction of the trial tribunal. Mr. Tibanyendera has questioned the pecuniary jurisdiction of the trial tribunal for the reason that, combining the sum of TZS 50,000,000 pleaded as the value of the suit property with claim of TZS 12,500,000 sought in the prayer's clause as mesne profit, the value of the subject matter of the dispute exceeded the pecuniary jurisdiction of the trial tribunal as it stood in 2011 when the suit was being instituted. He therefore, invites the Court to nullify the judgment and proceedings of the trial tribunal on that account. In rebuttal, it was advocate Lulu's submissions that, because TZS 12,500,000 does not feature out in the factual allegations constituting the claim, the mere fact that it is sought in the prayer's clause, does not affect the jurisdiction of the Court. With respect, she is correct. The position of law on pecuniary jurisdiction is settled. It is the substantive claim in the plaint which determines the pecuniary jurisdiction of the Court and not the prayers in the relief clause. On that account, the first issue is answered against the appellant. Let me proceed with the second issue as to the substantial correctness and validity of the finding of the trial tribunal. As the record clearly shows, the respondent herein, SALUM SAIDI, was the claimant at the trial tribunal. He was suing as the administrator of the deceased estate of the late ANTAR SAID KLEB. The factual allegations constituting his cause of action were pleaded in paragraph 6 (a) of the Application which for clarity, they are reproduced hereunder. Thus: (i) That the applicant (t/a Administrator of the estate of ANTAR SAID KLEB) is the owner of all that property situated on Plot No. 44/N Mindu Street in Morogoro Municipality. The house was acquired in 1982 in the name of the Applicant's Younger brother, one Antar Said Kleb (Deceased). Copy of deed of transfer is hereto annexed and marked "ANN1" to be part of this application. 00 That the younger brother, the said ANTAR SAID KLEB passed away on 6/05/2007. Copy of death certificate is hereto annexed and marked "ANN2" to be part ofthis application. 5 (Hi) That the applicant and his deceased brother had been in joint occupation and control of the disputed premises since when it was bought in 1982. Copies of letters and cheque payment of rents of the disputed premises are hereto annexed and marked "ANN3"as further part of this application. (iv) That in or about March 2011 the responded invaded the disputed house while the applicant had travelled to Yemen. The respondent is occupying the disputed premises ever since. (v) That the respondent is also known to have demolished some of the interior walls of the premises and has renovated it to suit his own desire. (vi) That the respondent also fraudulently collected from the Municipal Council (Land Division) a replaced title deed/ certificate of occupancy for the house at Plot No. 44/N Mindu Street Morogoro and is now withholding it without any colour of right nor any consent from the applicant. In his written statement of defense and counter claim, the appellant vigorously denied the allegation. He claimed to have purchased the suit property from ANTA SALUM SAID who is also known as ANTA SALUM KLEB. He pleaded and attached the said sale agreement. He further prayed and was granted, leave to issue a thirty party notice against ANTAR SALUM SAID. In his written statement of defense to the main suit, it is on the record, the said ANTAR SALUM SAID admitted to have sold the suit property to the appellant. The trial tribunal was guided by three issues in determining the matter. First, who is the lawful owner of the suit property. Two, whether the title on the suit property was legally passed to the respondent. Three, to what reliefs are the parties entitled to. The trial chairperson sat with two assessors namely; JANE C. MUGAZIJU and MR. LUKONDO. The latter expired before the conclusion of the suit and therefore, in terms of section 23(3) of the Land Disputes Court Act, Cap. 2016, the trial chairperson proceeded with one assessor. In his reasoned opinion, the surviving assessor advised the Court to dismiss the respondent's case and declare the appellant herein the lawful owner of the suit property. In his judgment, the trial chairperson held that the suit property belonged to the late ANTAR SAID KLEB who according to exhibits Al and A2 expired in 2007. He did not agree with the proposition by the appellant that, he purchased the suit property in 2009 because at that time, the said ANTAR SAID KLEB had already expired. He maintained further that, while exhibit DI suggests that the vendor of the suit property was ANTAR SALUM SAID, the record of the municipality suggests that the suit property was in the name of ANTAR SAID KLEB. The trial chairperson finally made an inference of there being fraudulent transfer of the suit property in the name of the appellant. The trial chairperson therefore nullified the title of the suit property in the name of the appellant and awarded a decree of vacant possession of the same to the respondent. In addressing the first issue, the trial chairperson opined as follows:- I have gone through the exhibits, and the testimony of the PW2, I have the settled view that the ownership of the suit property is still under ANTA&dSAID KLEB who according to exhibit Al and A2 has passed away, and the applicant is the administrator. I do not subscribe with the respondent's assertion that he purchased the land from the owner because firstly, at the time he purchased it, the owner was not alive to execute any deed, and he was already passed away and for the deceased's property to be disposed of, that transection must be executed by the deceased's legal representative as provided under section 99 of the Probate and Administration of Estates Act, Cap. 352, secondly, the exhibit DI, the sale agreement, shows the suit property was sold to the by one SAID SALUM SAID, while at per the testimonies of all witnesses, and the records at the municipal Land's office, the owner was ANTAR SAID KLEB In his submissions, Mr. Tibanyendera faults the trial tribunal in first place, for basing its decision on an incorrect proposition that, the vendor in exhibit DI and ANTAR SALUM SAID KLEB were two different persons while there was apparent evidence from both prosecution and defense side that it was the same person. In his rebuttal submissions, advocate Lulu Mbinga for the respondent, has insisted that the two persons are different and that, the suit property belonged to ANTAR SAID KLEB and not ANTAR SAID SALUM as claimed by the appellant. He has placed reliance on the testimony of PW2 reflected at pages 5 of the typed judgment. The respondent's case at the trial tribunal was built on the testimony of the respondent himself as PW1 and that of Mashaka Magnus Mgomela, the municipal land officer who testified as PW2. This is clearly reflected in the judgment of the trial tribunal and the rival submissions presented by the parties herein through their advocajesv- On the other hand, the case of the appellant was built on the testimony of two witnesses, including the appellant himself who testified as DW1. The second witness was KIPETA MOHAMED. As correctly submitted for the appellant, the entire testimony of PW1 is not in the record of the trial tribunal. Neither the documents that he exhibited. Ordinarily, that would render the determination of this appeal difficult, and perhaps, it would lead to either remittance of the matter to the trial tribunal for retrial denovo or an order for reconstruction of the record as the case could be. From the facts of this case and the rival submissions however, I have no doubt that, justice does not dictate so. As it shall be apparent in due course, the facts of the case is such that, it could be resolved through the available undisputed facts in pleadings and the respondent's evidence through his second witness one Mashaka Magnus Mgomela as well the evidence of PW1 narrated in the judgment without occasioning any injustice. From the pleadings, judgment and the rival submissions, it would appear, the main issue which I must address so as to resolve the controversy is whether the suit property belonged to ANTAR SAID KLEB, an individual person who is different from ANTAR SAID SALUM pleaded in the written statement of defense of the appellant herein? From the pleadings, the evidence referred in the judgment and rival submissions, the question appears to be simple and straightforward^ As a matter of law, the respondent being the claimant at the trial tribunal, had a burden to establish, on the balance of the probability that, the suit property belonged to the late ANTAR SAID KLEB whose estate was under his administration. In accordance with the factual allegation in paragraph 6(a) of the Application, the suit property was acquired, in the name of the late ANTAR SAID KLEB sometime 1982. The late ANTAR SAID KLEB, according to paragraph 6 (a) (iii) of the Application and the death certificate therein referred as annexure ANN2, passed away on 16/05/2007. In page 4 of the judgment, it is confirmed that, the said death certificate was admitted and marked Al. Express in the death certificate is the fact that, at the time of the death of the said ANTAR SAID KLEB on 16th May 2007, he was 23 years old. The suit property having been acquired in 1982 as claimed by the respondent, it was not only improbable but impossible to be acquired by the said ANTAR SAID KLEB or in his name. The reason being that, by simple mathematical calculation, there is a difference of more than 24 years between the death of the alleged ANTAR SAID KLEB and the acquisition of the suit property. As a matter of common sense therefore, since ANTAR SAID KLEB referred in exhibit Al was yet to be born in 1982, it was impossible for him to acquire the suit property or the same to be acquired in his name. It was also impossible for him to jointly occupy and control the suit property with the respondent since 1982 as alleged in the Application or at all. In my opinion therefore, the trial tribunal was wrong in holding that the suit property belonged to the late ANTAR SAID SALUM envisaged in the application and exhibit Al. To the contrary, the appellant who claimed to have purchased the suit property in 2009, produced, which was admitted as exhibit DI, the purchase agreement of the suit property. His ownership of the suit property is confirmed by MASHAKA MAGNUS NGEMELA who testified for the respondent as PW2. He confirmed in his evidence that ANTAR SALUM SAID AND ANTAR SALUM KLEB is the same person and that, during the transfer process, he appeared before him in the presence of the respondent. He did cause him to produce an identity card and upon satisfying himself that, he was the same person, he registered the transfer, it is in the evidence of PW2. This evidence was at the instance of the respondent and has never been impeached through the available procedure. In the premises therefore, the trial chairperson was wrong in believing the apparent false story in the prosecution case and disbelieving the highly probable defense evidence that, the appellant purchased the suit property from ANTAR SALUM SAID alias ANTAR SALUM KLEB with the knowledge and approval of the predecessor administrator as his father. In the circumstance therefore, the appeal succeeds and it is hereby allowed with costs. The judgment of the trial tribunal is hereby set aside and substituted with a decree of the dismissal of the respondent's suit^ 11 28/08/2020 Coram: Hon. S. H. Simfukwe, DR For Appellant: Ms. Coletha Galusi Advocate For Respondent: Ms. Lulu Mbinga advocate RMA: Bethsaida COURT: Judgment delivered this 28th day of August, 2020 in the present of Ms. Coletha Galusi learned counsel for the Appellant and Ms. Lu Mbinga learned counsel for the Respondent. DEPUTY REGISTRAR 28/08/2020 12